Customs and Sacred Law in Ancient Rome

Augustus as Pontifex maximus , who in this office wanted to emphasize the value and importance of the mores maiorum as the foundation of his legal and political legitimation

The custom and religious legal system in ancient Rome , which dates to the beginning of the monarchy was, based on informal customary law, which was regarded as a given by the gods order. The mos maiorum (the fathers' custom) was sacred to the Romans because it was based on long-lasting practice ( longa et inveterata consuetudo ) and on general consensus ( consensus omnium ). This immovable custom, on the one hand, regulated the relationships within a family association and, on the other hand, made it possible to live together in a common community. It was also recognized that outdated law could be invalidated by permanent non-application ( desuetudo ) (derogating customary law). A theory of common law, on the other hand, was never developed. Anyone who referred to the mos maiorum for a legal sentence did not articulate any current reason for validity, they referred to their historical origin. As a result, the classical jurists treated customary law as given and, according to their understanding , had to further develop it through interpretatio .

The jurisdiction within the family association was incumbent on a house court, which was chaired by the head of the family ( pater familias ). Because of his patria potestas, he had almost unlimited power. This authority could only be restricted and sanctioned under sacred law in the event of serious abuse, such as unjustified killing or repudiation. Such acts were viewed as sacrilege ( nefas ) against the protective deity. The wicked was declared peaceless because he had fallen for the vengeance of the gods ( sacer ).

The early jurisdiction in the religious society, which apparently had been under Etruscan and Greek influences, was arranged with the king in its dual function as the highest state priest and as state judge. He had the sacred legal authority ( auspicium ) for adjudication to seek the gods characters ( auspicatio ). The college of priests ( pontifices ) supported the king in interpreting the divine signs. If a rational solution seemed impossible, the legal dispute was settled by a divine judgment ( ordalium ), perhaps by means of a ritual duel. In addition to the right of hospitality , the priestly statutes on sacrificial and burial rites were sacred . Crimes against the community such as high treason and treason ( perduellio ) were persecuted publicly and secularly . After the last king was driven out, the interpretation of the law passed completely to the Pontifex maximus and the college of priests. Like the King before, this pontifical body supports the state magistrates in finding the law. The priesthood developed various formulas ( legis actio ) for prosecution and defense , which had to be strictly adhered to. The knowledge and the procedures of the legisl actio were strictly guarded by the priesthood and recorded in an archive. The legendary Sextus Papirius is said to have a fixed collection of sacred and civil statutes . Is said to have written the ius papirianum and the ius civile papirianum as pontifex maximus .

The tortious claims or the contractual claims against third parties, i.e. persons who were outside the legal area of a family clan ( gens ), were pursued and enforced on the initiative of the injured party (s ). In order to counteract anarchic excesses of excessive vigilante justice, it became a principle that the violation of law ( iniuria ) or the dispute should be settled with the summons of the defendant ( in ius vocatio ) before a court to be convened for the individual case. This principle of handling remained in principle until the end of the Roman Empire . With the increasing number of similarly decided individual case decisions ( case law ), individual areas of law and court procedural regulations with strictly adhered to jury formula procedures emerged, which were delimited and bindingly established by the legally competent priesthood.

Due to the large number of similarly decided court decisions in the many individual cases, ancient Roman law developed from simple customary law to mere case law, and finally passed into a case-based prejudice . This change favored the written fixation of abstract life facts in legal facts, which, in addition to political reasons (class struggles ), around 450 BC. Were standardized in the Twelve Tables law . The codification of the XII Tables was not limited to the written fixation of traditional customary law, but instead created new law deviating from it, without replacing customary law on the other hand. Vulgar law , which was established in the period after Diocletian , was also primarily Roman customary law.

Already at the beginning of the Roman Republic , the legal system in ancient Rome tended from a religiously determined to a factual-juridical and expert legal system. Secular law finding and interpretation fell to a constantly developing, legally literate curular administration of justice, which was rational and scientifically oriented.

The archaic sacral law with its statutes, regulations and religious offenses, such as the crimen incesti , remained in the jurisdiction of the competent college of priests chaired by their high priest.

literature

Herbert Hausmaninger , Walter Selb : Roman private law , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau study books), p. 17 ff .; 23; 32.
Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , p. 3 f.
Max Kaser : Roman private law . 2nd Edition. CH Beck, Munich / Würzburg 1971, ISBN 3-406-01406-2 , pp. 1–31.
Max Kaser: Roman legal history : Verlag Vandenhoeck & Ruprecht, Göttingen 1976, 2nd revised edition, ISBN 3-525-18102-7 , pp. 19–73, 159–164.
Max Kaser / Karl Hackl: Das Römische Zivilprozessrecht : Verlag CH Beck, Munich 1996, second edition, ISBN 3-406-40490-1 , pp. 26–34.
Wolfgang Kunkel , Martin Schermaier : Roman legal history. 13th edition, Böhlau, Cologne a. a. 2001, ISBN 978-3-8252-2225-3 , pp. 27-35.

Individual evidence

^ Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , p. 3 f.
↑ Instructive contributions to customary law: Siegfried Brie : The doctrine of customary law. A historical-dogmatic investigation . M. & H. Marcus, Breslau 1899 (new edition, Minerva, Frankfurt a. M. 1968); Wolfgang Kunkel : Kleine Schriften , 1974, p. 367 ff .; Franz Wieacker : Römische Rechtsgeschichte , Vol. I, 1988, p. 499 ff; The existence of customary law is (wrongly) disputed by various authors, in particular by: Werner Flume : Customary Law and Roman Law , Rheinisch-Westfälische Akademie der Wissenschaften , Lectures G 201, 1975.
↑ ^a ^b Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher), p. 17 ff .; 23; 32.

[1] Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , p. 3 f.

[2] Instructive contributions to customary law: Siegfried Brie : The doctrine of customary law. A historical-dogmatic investigation . M. & H. Marcus, Breslau 1899 (new edition, Minerva, Frankfurt a. M. 1968); Wolfgang Kunkel : Kleine Schriften , 1974, p. 367 ff .; Franz Wieacker : Römische Rechtsgeschichte , Vol. I, 1988, p. 499 ff; The existence of customary law is (wrongly) disputed by various authors, in particular by: Werner Flume : Customary Law and Roman Law , Rheinisch-Westfälische Akademie der Wissenschaften , Lectures G 201, 1975.

[Selb-3] Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher), p. 17 ff .; 23; 32.